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Ordinance No. 10,267 ORDINANCE NO. 10,267 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE LETTER OF INTENT AND AGREEMENT IN PRINCIPLE WITH THE RECEIVER FOR THE BAY OAKS HARBOR WATER AND SEWER SYSTEMS AND THE BAY OAKS HARBOR PROPERTY OWNERS ASSOCIATION, INC., CONCERNING THE CITY'S POSSIBLE TAKEOVER AND OPERATION OF THE WATER AND WASTEWATER SYSTEMS AT BAY OAKS HARBOR, SECTION ONE;AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ********************************************************************************* BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute and the City Clerk to attest to the Letter of Intent and Agreement in Principle with the Receiver for the Bay Oaks Harbor Water and Sewer Systems and the Bay Oaks Harbor Property Owners Association,Inc.,concerning the City's possible takeover and operation of the water and wastewater systems at Bay Oaks Harbor, Section One. A copy of said agreement is attached hereto, marked Exhibit "A" and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED,READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 23rd day of February, 2006. CALVIN MUNDINGER, May ATT LORRI COODY, City lerk APPROVED AS TO F . 411 • ae-e2Q ACIO RAMIREZ, SR., Ci ttorney R:\Karen\Files\City Council\Ordinances\2006\February 23\LOI4BOH.doc /'' LETTER OF INTENT AND AGREEMENT IN PRINCIPAL WHEREAS, John M. Fultz has been appointed Receiver (the "Receiver ") for the Bay Oaks Harbor Water and Sewer Systems (the `'Systems ") serving the subdivision known as Bay Oaks Harbor (the "Subdivision ") located within the city limits of the City of Baytown (the "City "); and WHEREAS, the Systems are operated under Certificate of Convenience and Necessity Number 12995 ( "CCN ") issued by the Texas Commission on Environmental Quality (`TCEQ "); and WHEREAS, the Receiver has engaged in negotiations with the City to transfer the Systems, the assets of the Systems, and the CCN to the City (the "Transfer "); and WHEREAS, the City has conducted tests of the Systems to determine their condition and the repairs, if any, that the City would require if the City were to accept the Transfer; and WHEREAS, the Bay Oaks Harbor Property Owners Association, Inc. (the "POA "), the homeowners' association serving the residents of the Subdivision, has been instrumental in securing funds to assist in the testing of the Systems and has indicated a willingness to pay to the Receiver any outstanding liabilities of the Systems should the Receiver and the City reach an agreement regarding the Transfer; and WHEREAS, the Receiver has indicated that he is amenable to the Transfer should the POA pay any and all outstanding liabilities of the Systems; and WHEREAS. the City has indicated its willingness to consider the acceptance of the Transfer subject to the POA's agreement (1) to grant to the City easements on, over, under, and along all existing private roads within the Subdivision and (2) not to oppose or protest the imposition of a monthly assessment/surcharge of an amount sufficient over time to discharge the cost to the City of bringing the Systems into compliance with the minimum standards of the TCEQ for water and sewer systems should the City accept the Transfer; and WHEREAS, any transfer of the Systems and the CCN is subject to approval by the District Court of Travis County overseeing the receivership of the Systems, and to approval by the TCEQ; NOW THEREFORE, the Receiver, the City, and the POA desire to enter into a Letter of Intent setting forth the intentions of the parties to consummate the Transfer upon the happening of certain contingencies as hereinafter set forth: 1. The Receiver represents that he intends to transfer the Systems, the assets of the Systems, and the CCN to the City upon the payment to the Receiver of all outstanding �► accounts payable due to the Receivership arising in the operation of the Systems by the Receiver as of the date of the Transfer. EST A Letter of Intent, Paoe 1 ri 2. Until the Transfer, the Receiver agrees to continue the operation of the Systems in a reasonable and prudent manner, to pay the costs of operations out of the income generated from the sale of water and sewer service to the residents of the Subdivision, and to apply any excess of income over operation costs to the accounts payable due by reason of the operation of the Systems and the receivership. 3. The Receiver agrees to prepare the appropriate documentation to obtain Court approval of the Transfer and to obtain TCEQ approval. 4. The POA represents that it intends to pay to the Receiver the balances remaining due on the accounts payable of the Systems as of the date of the Transfer to facilitate the Transfer to the City. 5. The POA represents that it will grant to the City easements for public utilities on, over, under, and along all existing private roads providing access to lots located within the Subdivision. 6. The POA represents that it will agree and will not object nor file a protest to an assessment/surcharge on the water and sewer billing for the Systems in the form of a tariff amendment allowing the City to recapture the cost of repairing the Systems to meet the minimum standards of TCEQ as determined by the engineering report obtained by the City in the recent testing conducted of the Systems. 7. The POA will obtain the agreement of its members to the representations made by the POA. 8. The City represents that, subject to the foregoing, it intends to accept the Transfer, provided that no debt is existing as of the date of the Transfer. 9. Should the City accept the Transfer, the City represents that it intends to make the repairs to the Systems required to bring the Systems into compliance with the minimum standards of TCEQ at such time as the City determines is appropriate, subject to the requirement of the assessment/surcharge for the cost thereof. Based upon the intentions of the parties as expressed above, the Receiver will proceed to file the appropriate transfer applications, the POA will proceed to obtain funding to pay the amounts intended to be paid by the POA, and the City will proceed with appropriate action to secure the tentative approval of the acceptance of the Transfer by the City Council, and endeavor to secure the funding for the repairs to the Systems. The foregoing represents the understanding of the parties as of the date hereof and constitutes an agreement in principal only. Final details of the Transfer, the amount of the accounts payable, the cost of repair, and the amount of the assessment/surcharge are subject to further Apo, review and confirmation. This is not intended as a contract, and none of the intentions Letter of Intent, Page 2 expressed shall be deemed binding upon the parties hereto or any of them, until and unless reduced to contractual form with appropriate consideration. Signed this,9;1(day of July, 2005. BAY OAKS HARBOR WATER & SEWER SYSTEM JOfIN M. FULTZ, RecgXber BAY OAKS HARBOR PROPERTY OWNERS ASSOCIATION By: _ HN DEADY, President THE CITY OF BAYTOWN, TEXAS By: CALVIN MUNDINGER, Mayor Letter of Intent, Page 3 LETTER OF INTENT AND AGREEMENT IN PRINCIPAL WHEREAS, John M. Fultz has been appointed Receiver (the "Receiver") for the Bay Oaks Harbor Water and Sewer Systems (the "Systems") serving the subdivision known as Bay Oaks Harbor (the "Subdivision") located within the city limits of the City of Baytown (the "City"); and WHEREAS, the Systems are operated under Certificate of Convenience and Necessity Number 12995 ("CCN") issued by the Texas Commission on Environmental Quality ("TCEQ"); and WHEREAS, the Receiver has engaged in negotiations with the City to transfer the Systems,the assets of the Systems, and the CCN to the City(the"Transfer"); and WHEREAS, the City has conducted tests of the Systems to determine their condition and the repairs, if any,that the City would require if the City were to accept the Transfer; and WHEREAS, the Bay Oaks Harbor Property Owners Association, Inc. (the "POA"), the homeowners' association serving the residents of the Subdivision, has been instrumental in securing funds to assist in the testing of the Systems and has indicated a willingness to pay to the Receiver any outstanding liabilities of the Systems should the Receiver and the City reach an agreement regarding the Transfer; and WHEREAS, the Receiver has indicated that he is amenable to the Transfer should the POA pay any and all outstanding liabilities of the Systems; and WHEREAS, the City has indicated its willingness to consider the acceptance of the Transfer subject to the POA's agreement (1) to grant to the City easements on, over, under, and along all existing private roads within the Subdivision and (2) not to oppose or protest the imposition of a monthly assessment/surcharge of an amount sufficient over time to discharge the cost to the City of bringing the Systems into compliance with the minimum standards of the TCEQ for water and sewer systems should the City accept the Transfer; and WHEREAS, any transfer of the Systems and the CCN is subject to approval by the District Court of Travis County overseeing the receivership of the Systems, and to approval by the TCEQ; NOW THEREFORE, the Receiver, the City, and the POA desire to enter into a Letter of Intent setting forth the intentions of the parties to consummate the Transfer upon the happening of certain contingencies as hereinafter set forth: 1. The Receiver represents that he intends to transfer the Systems, the assets of the Systems, and the CCN to the City upon the payment to the Receiver of all outstanding accounts payable due to the Receivership arising in the operation of the Systems by the Receiver as of the date of the Transfer. Letter of Intent,Page 1 2. Until the Transfer, the Receiver agrees to continue the operation of the Systems in a reasonable and prudent manner, to pay the costs of operations out of the income generated from the sale of water and sewer service to the residents of the Subdivision, and to apply any excess of income over operation costs to the accounts payable due by reason of the operation of the Systems and the receivership. 3. The Receiver agrees to prepare the appropriate documentation to obtain Court approval of the Transfer and to obtain TCEQ approval. 4. The POA represents that it intends to pay to the Receiver the balances remaining due on the accounts payable of the Systems as of the date of the Transfer to facilitate the Transfer to the City. 5. The POA represents that it will grant to the City easements for public utilities on, over, under, and along all existing private roads providing access to lots located within the Subdivision. 6. The POA represents that it will agree and will not object nor file a protest to an assessment/surcharge on the water and sewer billing for the Systems in the form of a tariff amendment allowing the City to recapture the cost of repairing the Systems to meet the minimum standards of TCEQ as determined by the engineering report obtained by the City in the recent testing conducted of the Systems. 7. The POA will obtain the agreement of its members to the representations made by the POA. 8. The City represents that, subject to the foregoing, it intends to accept the Transfer, provided that no debt is existing as of the date of the Transfer. 9. Should the City accept the Transfer, the City represents that it intends to make the repairs to the Systems required to bring the Systems into compliance with the minimum standards of TCEQ at such time as the City determines is appropriate, subject to the requirement of the assessment/surcharge for the cost thereof. Based upon the intentions of the parties as expressed above, the Receiver will proceed to file the appropriate transfer applications, the POA will proceed to obtain funding to pay the amounts intended to be paid by the POA, and the City will proceed with appropriate action to secure the tentative approval of the acceptance of the Transfer by the City Council, and endeavor to secure the funding for the repairs to the Systems. The foregoing represents the understanding of the parties as of the date hereof and constitutes an agreement in principal only. Final details of the Transfer, the amount of the accounts payable, the cost of repair, and the amount of the assessment/surcharge are subject to further review and confirmation. This is not intended as a contract, and none of the intentions Letter of Intent,Page 2 expressed shall be deemed binding upon the parties hereto or any of them, until and unless reduced to contractual form with appropriate consideration. Signed thi,eday of July, 2005. BAY OAKS HARBOR WATER & SEWER SYSTEM By. JO M. FULTZ, Receive B OAKS HARBOR PROPERTY OWNERS ASSOCIATION By: DEADY, Preside THE CITY OF BAYTOWN, TEXAS By: _ o' '• <‘` CALVIN MUNDINGER, M71`' --. • •v Pic • • ,•'it �_ ** • ;*I,,,,� Letter of Intent,Page 3